ABC's Greenburg takes Sotomayor remarks out of context, provides opposition spin

In a May 26 report on ABC's World News, legal correspondent Jan Crawford Greenburg aired two comments from Supreme Court nominee and 2nd U.S. Circuit Court of Appeals Judge Sonia Sotomayor, in both cases removing her remarks from context and providing only criticisms of those statements from her conservative opponents.

After stating, "Conservatives today seized on this comment Sotomayor made four years ago when she was a federal appeals court judge," Greenburg aired a clip of Sotomayor remarking at a February 25, 2005, Duke University School of Law forum, "court of appeals is where policy is made. And I know -- and I know this is on tape and I should never say that because we don't make law, I know." Greenburg then commented, "Republican senators say that shows she will do more than interpret the law," then aired a clip of Sen. Jeff Sessions' (R-AL) assertion, "If a judge is making a legal decision, it shouldn't be a decision based on feelings."

In fact, Sotomayor was responding to a student who asked the panel to contrast the experiences of a district court clerkship and a circuit court clerkship. Sotomayor's remarks from the Duke panel discussion (beginning at approximately 40:00):

SOTOMAYOR: The saw is that if you're going into academia, you're going to teach, or as Judge Lucero just said, public interest law, all of the legal defense funds out there, they're looking for people with court of appeals experience, because it is -- court of appeals is where policy is made. And I know -- and I know this is on tape and I should never say that because we don't make law, I know. OK, I know. I'm not promoting it, and I'm not advocating it, I'm -- you know. OK. Having said that, the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating -- its interpretation, its application. And Judge Lucero is right. I often explain to people, when you're on the district court, you're looking to do justice in the individual case. So you are looking much more to the facts of the case than you are to the application of the law because the application of the law is non-precedential, so the facts control. On the court of appeals, you are looking to how the law is developing, so that it will then be applied to a broad class of cases. And so you're always thinking about the ramifications of this ruling on the next step in the development of the law. You can make a choice and say, "I don't care about the next step," and sometimes we do. Or sometimes we say, "We'll worry about that when we get to it" -- look at what the Supreme Court just did. But the point is that that's the differences -- the practical differences in the two experiences are the district court is controlled chaos and not so controlled most of the time.

Moreover, according to NBC News justice correspondent Pete Williams' report from earlier that day, "[E]ven some conservatives and followers of strict constructionism have said that [Sotomayor] was only stating the obvious: that trial judges, district court judges, decide only the cases before them, and that appeals courts, because they are the, you know, above the other courts, do set policy; they do make precedent that governs the other courts." Indeed, the Oxford Companion to the Supreme Court of the United States (2005) notes that federal appellate courts do in fact have a "policy making" role.

Similarly, Greenburg stated that "Conservatives point to a speech she gave in 2001 at the University of California at Berkeley Law School, when she suggested her ethnicity shapes her decision," then quoted her statement during that speech, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." But when Sotomayor made that statement, she was specifically discussing the importance of judicial diversity in determining race and sex discrimination cases, and conservatives have previously highlighted the importance of the personal experiences of judicial nominees.

As Media Matters for America has noted, during his 1991 Supreme Court confirmation hearings, responding to Sen. Herb Kohl's (D-WI) question, "I'd like to ask you why you want this job?" Clarence Thomas similarly stated in part: "I believe, Senator, that I can make a contribution, that I can bring something different to the Court, that I can walk in the shoes of the people who are affected by what the Court does." Moreover, former Bush Justice Department lawyer John Yoo has stressed that Thomas "is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him" and argued that Thomas' work on the court has been influenced by his understanding of the less fortunate acquired through personal experience.